Could the government outlaw a hypothetical "Human Sacrifice Channel" on cable TV?
That question became the focus of a Supreme Court argument Tuesday on the reach of the 1st Amendment and whether Congress can outlaw videos showing dogs fighting or other small animals being tortured and killed.
Last year, a federal appeals court, citing freedom of speech, struck down a law against selling videos with scenes of animal cruelty.
The law applied only to illegal acts of torturing or killing animals, not legal hunting or fishing. It was intended to dry up the underground market in so-called crush videos, which show squealing animals being stomped by women in high heels. More recently, it has been used to prosecute people who sell videos of pit bulls and other dogs fighting.
On Tuesday, most of the justices sounded wary of reviving the law, fearing it might be used to ban depictions of legal activities such as hunting.
Justice Antonin Scalia, an avid hunter, insisted the 1st Amendment does not allow the government to limit speech and expression, unless it involves sex or obscenity.
"It's not up to the government to tell us what are our worst instincts," Scalia said.
He repeatedly cited Adolf Hitler and his policies of extermination, asking, "Can you keep him off the screen" just because his deeds were vile?
Justice Samuel A. Alito Jr. garnered the attention of his colleagues with a series of questions on whether videos portraying humans being killed would be protected as free speech.
Describing a hypothetical scenario, Alito said there might well be a "pay per view" market for programs made outside the United States and beyond the power of U.S. law that showed people actually being killed. He called it the "Human Sacrifice Channel" and wondered aloud whether Congress could outlaw the showing of such programs in this country.
"Live. Pay-per-view, you know, on the Human Sacrifice Channel. That's OK?" Alito asked.
A lawyer defending a Virginia man who sold dog-fighting videos said she wasn't sure.
"The fact conduct is repulsive or offensive does not mean we automatically ban the speech," said Patricia Millett, the lawyer for Robert Stevens.
She said the 1st Amendment usually protects speech and expression, even if the underlying conduct is ugly or illegal. She said the government should work to stop the illegal acts rather than make it a crime to show the illegal acts.
Several members of the court pressed her.
"I'm still looking for an answer," said Chief Justice John G. Roberts Jr. "You are unwilling to say that Congress can pass a law that you cannot have a Human Sacrifice Channel?"
Justice Ruth Bader Ginsburg mentioned "snuff films" and said they raise the same issue.
For much of the hour, the government's lawyer, Deputy Solicitor General Neal Katyal, struggled to convince the justices that the law targeted only crush and dog-fighting videos.
Stevens was convicted of selling three videos that contained scenes of pit bulls fighting in Japan, where the activity is legal.
By the arguments' end, the justices seemed to be weighing several possibilities.
One was to narrow the reach of the law to focus only on crush videos. A second would be to uphold the law as written, but make it clear that moviemakers, photographers and others had a right to challenge its use against legitimate work portraying animals. A third possibility was to rule the entire law unconstitutional because it infringed too much on the 1st Amendment.
A ruling in the case, U.S. vs. Stevens, is not expected for several months.